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Lawyer: Fitchburg drug convict should go free due to lab scandal

By Jack Minch, jminch@sentinelandenterprise.com

Updated:
10/11/2012 06:37:31 AM EDT

FITCHBURG -- A Fitchburg man serving a three-year sentence for trafficking 300 pounds of marijuana could be the first local person released from jail because evidence against him was tested by state chemist Annie Dookhan at the Jamaica Plain crime lab.

Attorney William Smith, of Holden, said Wednesday he filed a motion in Worcester Superior Court to let Matti E. Thomasian out of prison while the scandal is investigated.

Smith said he also plans to file a motion for a new trial when the investigation is completed.

A Worcester Superior Court judge had Thomasian's file under advisement Wednesday, so it was unavailable for viewing, the clerk's office said.

A Brockton Superior Court judge released another of Smith's clients last week on an unrelated case that is also connected to the scandal.

Worcester County District Attorney Joseph Early Jr. Wednesday said he is not surprised by Smith's motion because defense attorneys around the state are doing the same thing.

"Based on the statement (Dookhan) gave to state police on tampering evidence, every defense attorney is filing a motion," Early said.

Thomasian, who was living on Mount Vernon Street, was arrested in October 2007 along with Edgar E. Espinoza, of Leominster, and Raul Barajas, of Fitchburg.

They had allegedly arranged to have 300 pounds of marijuana sent from Los Angeles to a shipping company on the Cape.

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An employee at the company recognized something unusual about the package and notified police.

Officials with the federal Drug Enforcement Agency and Wareham and Bourne police searched the packages after a police dog detected drugs inside.

It was slated to be sent to a Fitchburg address, but a courier arrived at the shipping company and said it was the third time he had been sent to pick up a package.

The courier was allowed to deliver the package to a storage unit in Fitchburg, where he was met by Espinoza and Barajas.

Officers from the North Worcester County Regional Drug Task Force arrested the pair.

Police later arrested Thomasian.

Barajas' attorney Vincent F. Ricciardi Jr., was in court for another case Wednesday and was not available for comment.

The marijuana seized was destroyed and cannot be retested.

The smell was so pungent that employees in the court clerk's office were complaining it was making them sick, Early said.

The drugs had already been tested by Dookhan and another lab employee, so the prosecution and defense attorneys stipulated to the fact the evidence was marijuana and it was destroyed, he said.

"It was a good-faith basis on our part and a decision on their part to stipulate the material in question was marijuana," Early said.

Authorities say more than 1,100 inmates are serving time in cases in which Dookhan was the primary or secondary chemist testing evidence, the Associated Press has reported.

Dookhan has been charged with obstruction of justice for allegedly skirting protocols and faking test results.

State police say Dookhan tested more than 60,000 drug samples involving 34,000 defendants over nine years while working at the Public Health Department's Hinton State Laboratory Institute in Jamaica Plain.

It appears the Committee for Public Counsel Services, also known as public defenders office, is recommending its attorneys and bar advocates file motions for any case coming out of the now-closed lab in Jamaica Plain questioning accuracy and chain-of-custody, Early said.

"They are questioning the validity of other cases with other chemists coming out of that lab," he said.

There are relatively few Worcester County cases of evidence being allegedly tainted by Dookhan because most evidence from the Fitchburg and Leominster region is tested at UMass Memorial Medical Center or other the state labs, Smith said.

The evidence in Thomasian's case was tested in Jamaica Plain because that's where the DEA was sending its evidence.

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